The court emphasized that procedural compliance under Section 82 Cr.P.C. is mandatory and that anticipatory bail can be granted to a proclaimed person if proper procedures are not followed.

JUDGMENT :

(Harpreet Singh Brar, J.)

Prayer in the present petition under Section 438 Cr.P.C. is for grant of anticipatory bail to the petitioner in a complaint case No.N.I.Act/737/2020 dated 23.12.2020 titled as "Tarsem Lal vs. Baby" under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') (Annexure P1) in which she has been declared a proclaimed person vide order dated 03.02.2022(Annexure P2).

FACTUAL BACKGROUND

2. The petitioner and her husband entered into an agreement to sell land measuring 2 marlas bearing khasra No.36/3 Red(32-0) situated in village Jammu Kalyari, H.B. No.235, Tehsil and District Pathankot, on which a residential house is constructed, with the respondent-complainant. The said property is registered in the name of husband of the petitioner-Mukesh Kumar. According to the agreement, consideration amount was fixed at Rs.5,50,000/-, out of which the respondent paid Rs.2,50,000/- as earnest money. Thereafter, the petitioner and her husband avoided executing the said agreement to sell. The respondent approached the Court of Civil Judge (Junior Division) where, vide judgment and decree dated 27.07.2018, the registered owner of the suit property was directed to return the earnest money of Rs.2,50,000/- at the rate of interest of 6% p.a. from the date of execution till filing of the civil suit and 8% p.a thereafter till realization to the respondent along with cost of Rs.18,480/-.

3. In order to discharge their legally enforceable liability, the petitioner issued a cheque bearing No.015181 dated 13.10.2020 for an amount of Rs.3,20,000/- in favour of the respondent. The cheque was presented on 23.10.2020 for encashment but the same was dishonoured vide memo dated 26.10.2020 with the remarks- 'Funds insufficient.' Thereafter, the respondent served a legal notice dated 19.11.2020 upon the petitioner. However, the petitioner failed to pay the cheque amount within the stipulated 15 days after the receipt of the legal notice leading the respondent to file a complaint under Section 138 of the NI Act on 23.12.2020 before the Chief Judicial Magistrate, Pathankot.

4. The petitioner was ordered to be summoned to face trial for 10.03.2021. However, the petitioner did not turn up and bailable warrants of arrest were ordered to be issued for 29.04.2021. On 29.04.2021, yet again the petitioner failed to turn up, even though the bailable warrants were duly served upon her through her sister-in-law Rita Devi, and non-bailable warrants of arrest were ordered to be issued against her for 04.10.2021. The non-bailable warrants were received back with the report that per the information received from the husband of the petitioner, the petitioner had gone to Himachal Pradesh. Consequently, proclamation under Section 82 Cr.P.C. was ordered to be issued against her for 03.02.2022. On the recording the statement of serving official and after the expiry of the statutory period of 30 days, the petitioner was declared to be a proclaimed person.

CONTENTIONS

5. Learned counsel for the petitioner inter alia contends that the petitioner has been falsely implicated by respondent No.2. The petitioner is under no financial liability towards respondent No.2. Infact the cheque was given by her husband as security to respondent No.2. The petitioner is illiterate lady and she was never served with any summons of the complaint and without execution of warrants of arrest, learned Judicial Magistrate 1st Class has declared the petitioner as proclaimed person vide order dated 03.02.2022 (Annexure P2). Learned counsel for the petitioner further contends that without following the procedure as laid down under Section 82 Cr.P.C. the aforementioned order is illegal and not sustainable in the eyes of law. The petitioner approached the learned Sessions Court, Pathankot for grant of anticipatory bail but the same was dismissed by learned Additional Sessions Judge, Pathankot vide order dated 04.11.2023 (Annexure P3).

6. Per contra l